The Discovery Institute claimed that the judge essentially plagiarized the winning side’s Proposed Findings of Fact. As I previously pointed out, a trial judge’s acceptance of the winning side’s proposed findings is so common as to be unremarkable. There is a reason why the winning side “won” after all. No need to re-invent wheels. After the DI realized what they said, they have backpedaled from the plagiarism claim as even lawyers sympathetic to their cause are telling them they will lose credibility. As I noted, the losing side’s lawyers haven’t commented on this at all. As practicing attorneys, they recognize the power of the court’s ruling.

The DI now claims that the judge adopted the winning side’s proposed findings to such an extent that he also included their mistakes.

By now, we know there’s a catch. It’s in the DI’s misrepresentation of “mistake.” To discuss this I need to explain some civics. I’ll do that by offering an example. At a non-jury trial, the judge acts as the fact finder. He hears conflicting evidence, such as “the light was red” and “no it wasn’t, it was green.” The judge then decides whether the light was “red” or “green.” Each side proposed findings of fact. One side proposes: “The light was red.” The other proposes “the light was green.” The judge makes a decision. There is a winner and a loser. If the judge adopts the proposed finding that the “light was red” there will be a winner and loser. The loser may disagree with teh judge, but that’s our legal system. The loser can choose to appeal or move on with his life.

What the loser cannot say is that the judge made a mistake in accepting that the light was red. In fact, the judge’s decision is not a “mistake” he is specifically choosing one side’s version of facts over the other side’s version. That’s not a mistake, it’s exactly what we pay judges to do.

The Discovery Institute’s list of “mistakes” is merely a list of instances where the judge rejected the defendant’s position and accepted the plaintiff’s position. That’s not a mistake.

The DI further compounds its error by demonstrating the “mistake” based on testimony of its own witnesses. This is a ludicrous proposition.

Let’s examine how that works in a hypothetical bank robbery trial.

The evidence consists of (1) videotape showing the defendant in the bank, (2) the defendant’s fingerprints lifted from the bank teller’s countertop, (3) bank money found in the defendant’s possession, and (4) the defendant’s testimony that he did not rob the bank. The court, on this evidence convicts the defendant. Can we reasonably say that the court made a mistake because its finding contradicts the direct testimony of a witness? Of course not—the court simply didn’t believe the defendant.

That is the weakness in the Discovery Institute’s claim that the judge made such mistakes as finding that there was no peer reviewed literature or that Intelligent Design is based on the requirement for a supernatural intervention in the course of natural events. Did the ID witnesses claim there was peer reviewed literature? Yes. Did they also admit there was none? Yes, they did. Did they deny the need for a supernatural interference? Yes. Did they concede that Pandas called for supernatural interferences? Yes they did.

Based on their inconsistent testimony the judge did not believe the testimony of the ID proponents. A judge’s determination that a witness is not believable is not a “mistake.” It’s what all judges do.

Now, it’s possible that the DI wouldn’t know this. I doubt that because the DI has far more lawyers on its staff than biologists. That fact alone says volumes. The spin continues.

In its latest effort to defame Judge Jones the DI quotes from Judge Jones' Farleigh Dickinson comencement speech and sets it off against a quote from Frank Lambert's, The Founding Fathers and the Place of Religion in America (Princeton University Press, 2003).

Here's the first sentence of the DI's version of Judge Jones' commencement speech:

"...our Founding Fathers... possessed a great confidence in an individual's ability to understand the world and its most fundamental laws through the exercise of his or her reason... "

Here's the first sentence of Lambert, according to the DI:

"The Founding Fathers... had great confidence in the individual's ability to understand the world and its most fundamental laws through the exercise of his or her reason."

"As has been often written, our Founding Fathers were children of The Enlightenment. So influenced, they possessed a great confidence in an individual's ability to understand the world and its most fundamental laws through the exercise of his or her reason."

Oh, he attributed it after all. He did not hold out the idea as his own. Ellipses are a wonderful thing.

Now the Di has a backgrounder report that makes it clear that they do not accuse the judge of plagiarism or of any unethical conduct. I wonder how come so many of their fellow Christians misunderstood the DI? Were they not clear intheir earlier reports?

As far the backgrounder report goes, the DI is technically right. There’s nothing wrong with the way Judge Jones wrote the Dover opinion. After acknowledging the obvious, they then sprinkle fertilizer over the acknowledgement by asking rhetorically if judges don’t routinely borrow from the proposed findings."

They ask, Don’t judges do this all the time?

Their answer:

Not to such a high extent of copying that Judge Jones employed. While there is no absolute prohibition against what Judge Jones did, the Associated Press reports that a legal scholar at the Louis Stein Center for Law and Ethics at Fordham Law School explained that it is “not typical for judges to adopt one side's proposed findings verbatim."

This is deceiving for three reasons.

Why? First, the DI elsewhere stated that Judge Jones did not adopt one side’s facts verbatim. What he did do--extensive and liberal borrowing--is indeed routine. Therefore, the Fordham “quote” is not applicable to this situation. Third, the Fordham “quote”isn’t realy a quote. You’ll notice that this is cleverly a second hand reference to an AP report.

Here’s what the source actually says:

Bruce Green, director of Louis Stein Center for Law and Ethics at Fordham Law School, said although it is not typical for judges to adopt one side's proposed findings verbatim, they cannot face sanctions for doing so. "There's not a rule that categorically forbids it," Green said. "Courts have sometimes criticized the practice, especially when it looks like the judge didn't do any independent thinking.

Again he’s only criticizing verbatim adoption of one side’s proposed findings, which admittedly didn’t happen here. He doesn't have anythingot say about selctive and extensive quoting that is a routine and expected part of federal judicail decisions. The use of this quote at this location is deceptive.

What do courts say about what did happen here--verbatim adoption of parts of one side's proposed findings?

Each party, if he so desires, may present findings setting forth his theories and evidence which he thinks support those theories and it becomes duty of court to select findings which it thinks are correct; if all or any part thereof are wrong they should be rejected and they may be restated in other language if court so desires, or they may be adopted as requested if court so desires; if court adopts them they become court's findings regardless of who wrote them. Taylor Instrument Cos. v Fee & Stemwedel, Inc. (1942, CA7) 129 F2d 156.

While burden and responsibility to make findings of fact and state conclusions of law thereon are primarily upon trial court, counsel for parties, especially prevailing party, have obligation to a busy court to assist it in performance of its duty in this regard. Dearborn Nat'l Casualty Co. v Consumers Petroleum Co. (1947, CA7 Ill) 164 F2d 332.

By having prevailing party submit proposed findings of fact and conclusions of law, trial judge followed practical and wise custom in which prevailing party has obligation to busy court to assist it in performance of its duty under Rule 52(a). In re Woodmar Realty Co. (1962, CA7 Ind) 307 F2d 591

Technique to be utilized by trial judge in complex cases--which accommodates requirement of specialized assistance in preparation of findings of fact to rule that such findings are to be his and his alone--is for counsel for party who is due to prevail in tentative opinion of trial court to submit proposed findings of fact and conclusions of law to court with copy to adverse counsel, and thereafter at hearing attended by counsel for all interested parties, court will enter findings and conclusions as proposed or as appropriately modified. Keystone Plastics, Inc. v C & P Plastics, Inc. (1975, CA5 Fla) 506 F2d 960.

Well, neither. I will gently rib the state and federal bench by dividing judges into two categories: Lazy judges and not so lazy judges.

Why is this difference important?

After trial there is as “winner” and a “loser,” as Intelligent Design has found out. About 50% of all parties in trials come out as “losers.” Losers don’t like being losers. They moan, they blame the judges or their own lawyers. It never crosses their minds that the law and facts were against them. At Dover, there is no question that ID was the “loser.”

After the winner and loser is determined, the judge will usually “write” a “Statement of Decision” or “Findings of Fact and Conclusions of Law.” This sets out the facts and legal principles in support of the judge’s ruling.

They are either ignorant or willfully dishonest. The judge seldom writes the statement of decision from scratch. In many cases, a lazy judge tells the winning side to submit a proposed state of decision. This is what winning lawyers gleefully call a “blank check.” Nevertheless, it is a very good idea for the winning attorney to carefully write the proposed decision as legally and factually accurately as possible. The attorney will include all of the factual and legal support for the ruling correctly referencing the law and the evidence.

Here’s the rub, though: The attorney will also be allowed broad leeway to draw inferences from disputed facts or to resolve factual disputes in his favor. In truth, the “check" is not blank—the attorney must carefully craft the proposed decision to match the judge’s actually ruling. If he oversteps his preogative, he may find the judge will simply change his mind.

Not so lazy judges give an attorney general guidelines on what to put in the decision and will extensively re-write the decision into the judge’s preferred syntax.

Either way, if the attorney has done his job well, the winner's proposed facts and law will bear an uncanny resemblance to the final decision. There is nothing more exhilarating than to see your own words and analysis plunked directly into the final opinion. When that happens, you know two things. First, you won your case. Second, you did a very good job of anticipating the judge. Congratulations!

In the Dover case, Judge Jones (who is not lazy) required both sides to submit proposed findings of fact and conclusions of law. These are prepared by the attorneys as if the judge would sign them verbatim.

The ACLU’s proposed findings are here.The Thomas More Law Center’s proposed findings begin here and continue through here.

See—both are written as if the judge would sign with no changes. Both sides expect this routine practice. The Federal Rules of Civil Procedure set out the requirements for findings of fact and cocnlusions of law. The notes to Rule 52 acknowledge the common practice of preparation by the winning attorney.

Timothy Sandefur at Pandas’s Thumb correctly refers to the leading case approving of this practice.There are a number of cases that have analyzed Rule because they have been other losing whiners before the Discovery Institute who were also surprised that the very same judge who didn't agree with them during the trial still doesn't agree with them after the trial.

It is therefore willfully dishonest for an attorney to accuse Judge Jones of plagiarizing the proposed findings of the winning side.What Judge Jones did was routine procedure. And it takes nothing away from the opinion.

How do we know?

Remember Sherlock Holmes’"the curious incident of the dog in the night-time?"

The dog did nothing in the night time.

"That was the curious incident," remarked Sherlock Holmes.

The Dover opinion is one year old.Both sides’ proposed findings are online. Attorneys on both sides scrutinized each others’ submission, probably committing them almost to memory.The judge then followed by issuing his opinion in December 2006.

Do you think that the Thomas More Law Center attorneys immediately noticed the similarity between the judge’s opinion and the ACLU brief in the past year?Of course they did.

Are they “barking” along with the ID chorus?No, they are not.They know better.Their silence says volumes.